The extract of the Dissenting Judgment below is certainly an eye-catching -
“The Court’s Judgment provides an equitable solution to the dispute before it. Pedra Branca/Pulau Batu Puteh is awarded to Singapore; Middle Rocks is awarded to Malaysia; and South Ledge, a low-tide elevation, will be allocated to the State in the territorial waters of which it is located. Although the dispute was not, at least in theory, about territorial sea and continental shelf, both Parties will share these areas and their resources. If this Court was sitting as a court of equity, or if it had been authorized by the Parties to decide the case ex aequo et bono in terms of Article 38, paragraph 2, of the Statute of the Court, I might have been able to agree with the Court’s Judgment. The Court is not, however, sitting as a court of equity. The Special Agreement entered into between Malaysia and the Republic of Singapore on 6 February 2003 makes it clear, in Article 5, that the dispute is to be resolved in accordance with international law. As I find it impossible to agree with the Court’s reasoning on the law, and its interpretation of the facts upon which this legal reasoning is based in respect of the question of sovereignty over Pedra Branca/Pulau Batu Puteh, I must dissent on this issue.”
The above extract features as the first paragraph of in the Judgment of the Dissenting Judge.
Ya ya ya….it is only a dissenting Judgment, but the impact of the quoted paragraph certainly cannot be ignored and taken lightly.
More specifically, I couldn’t help but to question myself whether the majority Judgment is tainted with the suspicion that it is intended to be politically correct. That the deliberation for the Judgment is motivated and driven by the need to be fair to both sides. Even if the law says otherwise. Even if it is at the expense of one party.
If that is true, I think it is grotesque. It should not have any bearing on equity consideration whatsoever. Or the need to be nice to one of the party because it is small?
I can accept equity consideration if the dispute between Malaysia and Singapore is about three features located in Antartica or in the country of Narnia. But the dispute is not about that.
The dispute is about determining the status of the three features which in ancient days belong to someone.
Those three features have their original owner.
Malaysia says they are hers since time immemorial.
Singapore also says that they are hers because it took possession of the features that belong to no one at the time it occupies and builds the Horsburgh Lighthouse there.
So it’s either Malaysia or Singapore.
You Judges were convinced that they belong to Malaysia. That Johor had historical and original title to Pulau Batu Puteh, Middle Rocks and South Ledge.
But then why must you construe Malaysia had “passed” that title to Pulau Batu Puteh to Singapore by that 1953 letter.
It doesn’t make sense does it, it is also contrary to the law you yourselves established.
Johor would never do that. Not when it comes to the question of territory. The question of maruah.
Because for us, “territory is a territory even if it is the size of a coconut shell”.
The very first lesson I was thought when I was learning about the Malay world long long time ago, betul tak Prof?
Even more horrifyingly awful, you also refuse to declare that South Ledge remains with Malaysia as the original title holder. Instead, you shield under the modern principle of the law of the sea and ask the two countries to decide among themselves.
The majority Judgment is an ugly legal truth. It's not the road to justice, but the road to nowehere. Now, you have further complicate the matter for us.
But I thank you the dissenting Judge for indirectly sharing with us an insight of why the Judgment could have end up as such.
“The Court’s Judgment provides an equitable solution to the dispute before it. Pedra Branca/Pulau Batu Puteh is awarded to Singapore; Middle Rocks is awarded to Malaysia; and South Ledge, a low-tide elevation, will be allocated to the State in the territorial waters of which it is located. Although the dispute was not, at least in theory, about territorial sea and continental shelf, both Parties will share these areas and their resources. If this Court was sitting as a court of equity, or if it had been authorized by the Parties to decide the case ex aequo et bono in terms of Article 38, paragraph 2, of the Statute of the Court, I might have been able to agree with the Court’s Judgment. The Court is not, however, sitting as a court of equity. The Special Agreement entered into between Malaysia and the Republic of Singapore on 6 February 2003 makes it clear, in Article 5, that the dispute is to be resolved in accordance with international law. As I find it impossible to agree with the Court’s reasoning on the law, and its interpretation of the facts upon which this legal reasoning is based in respect of the question of sovereignty over Pedra Branca/Pulau Batu Puteh, I must dissent on this issue.”
The above extract features as the first paragraph of in the Judgment of the Dissenting Judge.
Ya ya ya….it is only a dissenting Judgment, but the impact of the quoted paragraph certainly cannot be ignored and taken lightly.
More specifically, I couldn’t help but to question myself whether the majority Judgment is tainted with the suspicion that it is intended to be politically correct. That the deliberation for the Judgment is motivated and driven by the need to be fair to both sides. Even if the law says otherwise. Even if it is at the expense of one party.
If that is true, I think it is grotesque. It should not have any bearing on equity consideration whatsoever. Or the need to be nice to one of the party because it is small?
I can accept equity consideration if the dispute between Malaysia and Singapore is about three features located in Antartica or in the country of Narnia. But the dispute is not about that.
The dispute is about determining the status of the three features which in ancient days belong to someone.
Those three features have their original owner.
Malaysia says they are hers since time immemorial.
Singapore also says that they are hers because it took possession of the features that belong to no one at the time it occupies and builds the Horsburgh Lighthouse there.
So it’s either Malaysia or Singapore.
You Judges were convinced that they belong to Malaysia. That Johor had historical and original title to Pulau Batu Puteh, Middle Rocks and South Ledge.
But then why must you construe Malaysia had “passed” that title to Pulau Batu Puteh to Singapore by that 1953 letter.
It doesn’t make sense does it, it is also contrary to the law you yourselves established.
Johor would never do that. Not when it comes to the question of territory. The question of maruah.
Because for us, “territory is a territory even if it is the size of a coconut shell”.
The very first lesson I was thought when I was learning about the Malay world long long time ago, betul tak Prof?
Even more horrifyingly awful, you also refuse to declare that South Ledge remains with Malaysia as the original title holder. Instead, you shield under the modern principle of the law of the sea and ask the two countries to decide among themselves.
The majority Judgment is an ugly legal truth. It's not the road to justice, but the road to nowehere. Now, you have further complicate the matter for us.
But I thank you the dissenting Judge for indirectly sharing with us an insight of why the Judgment could have end up as such.
Because they either need to be politically correct or unfairly fair.
1 comment:
Where can I read the Dissenting Judgments? Can someone plese post it online? I don't find them on the ICJ website.
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